Smith v. Sherry
OPINION AND ORDER 1) Denying 1 Petition for Writ of Habeas Corpus; 2) Denying Certificate of Appealability; 3) Denying Leave to Proceed in Forma Pauperis on Appeal; 4) Granting 16 Motion to Expand Record and 5) Denying 15 Motion for Discovery. Signed by District Judge Anna Diggs Taylor. (JCur)
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION BOBBY WAYNE SMITH, JR., #270490, Petitioner, v. JERI-ANN SHERRY, Respondent. / OPINION AND ORDER 1) DENYING PETITION FOR WRIT OF HABEAS CORPUS; 2) DENYING CERTIFICATE OF APPEALABILITY; 3) DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL; 4) GRANTING MOTION TO EXPAND RECORD AND 5) DENYING MOTION FOR DISCOVERY (This Order Resolves Docket Entries 1, 15 & 16) Petitioner Bobby Wayne Smith has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner, who is currently incarcerated at the Chippewa Correctional Facility in Kincheloe, Michigan, challenges his convictions for first-degree premeditated murder, conspiracy to commit first-degree murder, and two counts of possession of a firearm during the commission of a felony. For the reasons set forth below, the Court shall deny the petition. I. Factual Background Petitioner was jointly tried with three co-defendants, Kevin Tyran Harris, Lamont Bernard Heard, and Antwan Lamont Williams. The Michigan Court of Appeals set forth the facts pertinent to Petitioner's convictions as follows: All the convictions stem from the shooting death of Lonnie Adams. The victim, a Case Number: 07-15231 HON. ANNA DIGGS TAYLOR UNITED STATES DISTRICT JUDGE
resident of Ypsilanti, came to Pontiac on August 30, 1995. According to his grandmother, Adams was there to visit family. Sometime around midnight that night, several people in the neighborhood heard gunshots. Several eyewitnesses testified at trial that, after having heard the volley of gunshots, they saw four men in dark clothing standing around Adams' body. Two witnesses testified that they believed they saw shots fired at the victim as he lay on the ground. One eyewitness testified that he saw four men chasing and shooting at Adams. According to this witness, one of the four exclaimed, "You trying to rob me. I've got something for your ass." Some of the most dramatic testimony was offered by a minor. Almost thirteen years old at the time of the shooting and seventeen years old as of trial, this witness testified that she saw Adams pounding and screaming at the door of her residence. This witness saw three men chase and shoot Adams after he left her residence. The witness identified one of the three shooters as Terry Cooley, who had died as of trial. When the witness showed reluctance in naming the other two, the trial judge cleared the courtroom of all spectators. Then, outside of the presence of the jury, the court questioned the witness about her reluctance to testify. She indicated that she was afraid to identify the other two men because she feared for her life. After the jury returned, the witness identified defendants Heard and Smith as the other two men she saw chase and shoot Adams. Dion Coleman testified that he and the four defendants were members of a street gang known as Project Posse. Coleman testified that Adams and defendant Williams got into an argument while at a dice game on the night of the shooting. Coleman testified that after Adams left the game, the four defendants and Antoine McNeal engaged in conversation during which they discussed killing Adams. According to Coleman, he and McNeal declined to go along with the murder. McNeal also testified that while he and Coleman were present when the murder was being planned, he and Coleman backed out. Coleman further testified that he saw the four defendants later that evening dressed in black and carrying a variety of weapons. According to Coleman, the men left with Cooley, traveling in a group of three and a group of two. McNeal testified that he witnessed the five men chasing Adams, and saw sparks fly from the group as they chased the victim. According to McNeal, Smith later told him that the four defendants and Cooley had killed Adams. Coleman testified that Smith also admitted his involvement in the murder. According to Coleman, the day after the murder, he, the four defendants, Cooley, and McNeal, met and agreed to keep quiet. Coleman indicated he at first kept the agreement, even going so far as to lie about the incident to the police and in another proceeding held in the district court. Coleman admitted on cross-examination that the police had told him that he could be charged with the murder if he continued to be uncooperative. 2
Sheila Scott, defendant Heard's girlfriend, testified that she was present when the four defendants, McNeal, and Cooley met up before the murder at Heard's station wagon. Heard and Harris gave her some unidentified personal items to hold, and Williams gave her a bike. The men then ran off, the hoods of their sweaters over their heads. At some later point in time, Scott witnessed the four defendants and Cooley chasing the victim. Soon thereafter, she heard the sound of gunshots. Heard then returned to his car, and the two drove to a liquor store. According to Scott, while the two were at the store, Heard stated the men had killed Adams. Later, Heard explained to Scott that Adams "was going to stick them up so they had to get him before he got them." Joseph Morris testified that he was incarcerated with defendant Harris at some point after the Adams murder. According to Morris, while the two were in their cell, Harris confessed to being involved in the murder. People v. Heard, et al., No. 221827, 2002 WL 1424420, at *1-2 (Mich. Ct. App. Jun. 28, 2002).1 II. Procedural History Following a trial in Oakland County Circuit Court, a jury convicted Petitioner of firstdegree premeditated murder, conspiracy to commit first-degree murder, and two counts of possession of a firearm during the commission of a felony. The court sentenced him to life imprisonment for the murder and conspiracy convictions, to be served consecutively to two years imprisonment for each of the felony-firearm convictions. Petitioner appealed his convictions to the Michigan Court of Appeals, presenting the following claims: I. Mr. Smith was denied his state and federal constitutional rights to a fair trial when the trial court gave improper jury instructions regarding accomplice liability and was denied the effective assistance of counsel because defense counsel failed to object to the instructions. Mr. Smith was denied his constitutional right to a fair trial and due process of law
The Michigan Court of Appeals consolidated the appeals of co-defendants Heard, Harris and Williams with Petitioner's. 3
due to prosecutorial misconduct. The Michigan Court of Appeals affirmed Petitioner's convictions. Heard, et al., No. 221827, 2002 WL 1424420 at *10. Petitioner then filed a delayed application for leave to appeal in the Michigan Supreme Court, presenting the same two claims, which the court denied. People v. Smith, 468 Mich. 872 (2003). Subsequently, Petitioner filed a post-conviction motion for relief from judgment pursuant to Michigan Court Rule 6.502. He argued that he was denied the effective assistance of trial counsel for 1) failure to investigate additional evidence of an alternate suspect; 2) failure to present a relevant and material alibi witness; 3) failure to challenge the trial court's jurisdiction; 4) failure to object to alleged prosecutorial misconduct; 5) failure to assert that the verdict was against the great weight of the evidence; 6) allowing inadmissible hearsay testimony into evidence; and 7) the cumulative harm of the errors that denied him a fair trial. Petitioner also argued that he was denied the effective assistance of appellate counsel for failure to raise the ineffectiveness of trial counsel on direct appeal. The trial court rejected these claims, because it found it had jurisdiction and because Petitioner failed to show prejudice from the problems alleged in his claims, as required by Michigan Court Rule 6.508(D)(3). People v. Smith, No. 98-163898 (Oakland Cty. Cir. Ct. Jan. 24, 2006) (unpublished). The court found that in light of the overwhelming evidence against Petitioner, he failed to demonstrate that the alleged errors would have changed the outcome of the trial. Id. at 2. Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals raising the same claims. The court denied leave to appeal for "failure to meet the 4
burden of establishing entitlement to relief under MCR 6.508(D)." People v. Smith, No. 270486 (Mich. Ct. App. Nov. 28, 2006) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which it denied for "failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Smith, 480 Mich. 854 (2007). Petitioner now seeks the issuance of a writ of habeas corpus on the same nine grounds he raised in his previous appeals. III. Pending Motions Petitioner has filed a Motion to Expand the Record and a Motion for Discovery. Petitioner seeks permission to expand the record to include affidavits from Eric Handy, his trial counsel, Shalina Pryor, an alleged alibi witness, and a self-executed affidavit. He contends they support claims presented in his habeas corpus petition. Rule 7, Rules Governing Section 2254 Cases, allows for expansion of the record in habeas corpus proceedings as follows: (a) If the petition is not dismissed summarily the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the petition. (b) The expanded record may include, without limitation, letters predating the filing of the petition in the district court, documents, exhibits, . . . Affidavits may be submitted and considered as part of the record. Rule 7, Rules Governing Section 2254 Cases. The Court notes that the Handy and Pryor affidavits are already part of the record. It further determines that Petitioner's self-executed affidavit is relevant to the determination of the merits of the habeas corpus petition, and, therefore, shall grant the request to expand the record with it. Petitioner has also filed a Motion for Discovery. Petitioner seeks access to grand jury 5
transcripts from an unrelated case in which he contends he was confused with an individual named "Poo Bah" who was the actual perpetrator in that proceeding. In the present case, he raised a mis-identification defense and argued that he had again been mistaken for "Poo Bah" when identified as a shooter. Rule 6, Rules Governing Section 2254 Cases, provides that leave of court is required before a habeas corpus petitioner may conduct discovery. Respondent has filed portions of the state court record in accordance with Rule 5, Rules Governing Section 2254 Cases. The Court determines that the record contains adequate information about Petitioner's mis-identification defense and no further materials are necessary at this time for a fair disposition of the petition. The Court therefore denies the Motion for Discovery. IV. Standard of Review Review of this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Pursuant to the AEDPA, Petitioner is entitled to a writ of habeas corpus only if he can show that the state court's adjudication of his claims on the merits(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Simply stated, under § 2254(d), Petitioner must show that the state court's decision "was either contrary to, or an unreasonable application of, [the Supreme] Court's clearly established precedents, or was based upon an unreasonable determination of the facts." Price v. Vincent, 538 U.S. 634, 639 (2003).
A state court's decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court's decision is an "unreasonable application of" clearly established federal law "if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. "Rather, it is the habeas applicant's burden to show that the state court applied [Supreme Court precedent] to the facts of his case in an objectively unreasonable manner." Woodford v. Visciotti, 537 U.S. 19, 25 (2002). V. Discussion A. Jury Instructions Petitioner claims that he is entitled to federal habeas relief because the trial court gave improper instructions to the jury regarding accomplice testimony and the defense of abandonment. Petitioner argues that the trial court judge mistakenly informed the jury that abandonment was a defense to conspiracy to commit murder; therefore, leading the jury to believe that two witnesses Antoine McNeal and Dion Coleman -- could not have been charged as accomplices if they abandoned the conspiracy. 7
Generally, a claim that a state trial judge gave erroneous jury instructions is not cognizable in a federal habeas action unless the instruction "`so infected the entire trial that the resulting conviction violates due process.'" Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). "[I]t must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned', but that it violated some [constitutional] right.'" Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Further, "[i]t is well established that the instruction `may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." Estelle, 502 U.S. at 72 (quoting Cupp, 414 U.S. at 147). The Michigan Court of Appeals, the last state court to issue a reasoned opinion regarding this claim, stated, in pertinent part: [D]efendant argues that the instructions on accomplice testimony were misleading and thus denied defendant a fair trial. The instructions regarding the testimony of McNeal and Coleman came at the conclusion of a lengthy series of instructions on evaluating witness testimony: Before you may consider what Antoine McNeal and . . . Dion Coleman . . . [s]aid in Court, you must consider whether [they] took part in the crime the defendant is charged with committing. Antoine McNeal and Dion Coleman have not admitted taking part in the crime. But, there is evidence to lead you to think that they did. A person who knowingly and willingly helps or cooperates with someone else in committing a crime is called an accomplice. When you think about Antoine McNeal and Dion Coleman's testimony first decide if they were an accomplice. If after thinking about all the other evidence you decide that they did not take part in this crime, judge their testimony as you judge any other witness. But, if you decide that Antoine McNeal and Dion Coleman were accomplices, then you must consider their testimony in the following way. You should examine an accomplice's testimony closely and be careful about accepting it. You may think about whether the accomplice's testimony is supported by other 8
evidence. Because then it may be more [re]liable . . . . However, there is nothing wrong with the prosecutor using an accomplice as a witness. You may convict the defendant based only on an accomplice's testimony if you believe the testimony and it proves the defendant's guilt beyond a reasonable doubt. When you decide whether you believe an accomplice, consider the following. Was the accomplice's testimony falsely slanted to make the [defendants] seem guilty because of the accomplice's own interest, bias or for some other reason. Has the accomplice been offered an award or been promised anything that might lead him to give false testimony. The witnesses have not been charged with the crimes arising out of this incident. Has the accomplice been promised that he will not be prosecuted or promised a lighter sentence or allowed to plead guilty to a less serious charge. If so, could this have influenced his testimony. Does the accomplice have a criminal record. In general, you should consider an accomplice's testimony more cautiously than . . . you would that of an ordinary witness. You should be sure you have examined it closely before you base a conviction on it. These instructions are accurate and complete. The abandonment instruction was delivered at the start of the instructions on the crime charged, which immediately followed the above excerpted accomplice testimony instruction: In this case, the defendants are charged with committing or intentionally assisting someone in committing first degree, premeditated murder and conspiracy to commit first-degree premeditated murder or the lesser charges of second-degree murder . . . . *** Anyone who intentionally assists someone else in committing a crime is as guilty as the person who directly commits it and can be convicted of that crime as an aider and abettor . . . . *** A person who aids and abets a crime and thereafter abandons the person, the crime may not be convicted as an aider and abettor. An abandonment occurs when a person freely and completely gives up the idea of committing the crime. These instructions are also accurate and complete. They do not indicate that abandonment is a defense to conspiracy to commit murder. Rather, they stated that a person cannot be convicted of aiding and abetting a conspiracy to commit 9
murder if they withdraw from the enterprise. Heard, et al., 2002 WL 1424420 at *4-5. While the trial court's instructions on accomplice testimony and abandonment were complete and proper under Michigan law, the prosecutor's rebuttal closing argument improperly conflated these instructions. The prosecutor stated: Another thing that you were told, ladies and gentlemen is that [I] . . . will suggest to you that Antoine [McNeal] can't be charged because he abandoned his crime. [I'm] . . . not suggesting anything to you. But, listen to the instructions given by Judge Howard. He will instruct you that a person who abandons a crime may not be charged with committing that crime. Tr., Vol. 10, at p. 178. Co-defendant Heard's counsel objected to the prosecutor's characterization of the jury instructions. The trial court sustained the objection and advised the jury, "The instruction will be as I give it to you." Id. The prosecutor then made the following remark: I'm not reading an instruction. The judge is going to do that. However, the statements that are made by defense attorneys as well as myself are not evidence. Listen to the Judge's instructions and I believe that what the Judge is going to tell you with regard to abandonment is something very similar to what I just told you, if not on point. Id. Co-defendant Heard's defense counsel again objected to the prosecutor's statement. The trial court then gave the following cautionary instruction: Again, if the attorneys say something different than what I say, follow what I say when it comes to the special instruction of abandonment which I will give you which you will read. I will read it in its totality. Id. at p. 179.
The Michigan Court of Appeals held that the prosecutor's misstatement of the law did not require reversal, stating, in pertinent part: Thus, properly framed, defendant's argument is not that the court erred in the instructions given, but that the court should have sua sponte altered its abandonment instruction after the actions of the prosecutor. While an instruction clearing up any potential ambiguity would have been desirable, we conclude that the failure to do so constitutes harmless error. The jury was still instructed that it was the court's responsibility to instruct the jury on the applicable law. *** Given the totality of the instructions and the weight of the evidence, we do not believe that defendant has established a miscarriage of justice requiring reversal. Heard, 2002 WL 1424420 at *5-6. In conducting federal habeas review of an alleged constitutional trial error, the Court will consider the error to be harmless unless it had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). If a federal judge in a habeas proceeding "is in grave doubt about whether a trial error of federal law has substantial and injurious effect or influence in determining the jury's verdict, that error is not harmless. And, the Petitioner must win." O'Neal v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation omitted). In the case of allegedly inadequate jury instructions, the petitioner must demonstrate that the instructions were so infirm as to render the entire trial fundamentally unfair. Estelle, 502 U.S. at 72. It is well established that, "[a] jury is presumed to follow its instructions." Weeks v. Angelone, 528 U.S.225, 234 (2000). In this case, the trial court properly instructed the jury regarding accomplice testimony and the defense of abandonment. Further, the trial court instructed the jury that the instructions were as he had given them, rather than as the lawyers
may have stated them. Thus, the Court concludes that any ambiguity caused by the prosecutor's misstatements did not render Petitioner's trial fundamentally unfair. Accordingly, the Michigan Court of Appeals' decision is not contrary to federal law and does not involved an unreasonable application of Supreme Court precedent. Petitioner is not entitled to habeas corpus relief with respect to this claim. B. Alleged Prosecutorial Misconduct In his next claim, Petitioner argues that his right to a fair trial was violated by repeated instances of prosecutorial misconduct. Specifically, Petitioner claims that the prosecutor engaged in misconduct by: 1) asking leading questions; 2) denigrating defense counsel by telling jurors that the sole purpose of the defense was to lead the jury astray; 3) improperly appealing to the jury's sympathy for the victim; and 4) misstating the jury instructions on accomplice liability and the defense of abandonment. In addition, Petitioner argues that the cumulative effect of the prosecutor's individual instances of misconduct deprived him of a fair trial. "Prosecutorial misconduct may warrant habeas relief only if the relevant misstatements were so egregious as to render the entire trial fundamentally unfair to a degree tantamount to a due process deprivation." Caldwell v. Russell, 181 F.3d 731, 736 (6th Cir. 1999). The determination whether the trial was fundamentally unfair is "made by evaluating the totality of the circumstances." Angel v. Overberg, 682 F.2d 605 (6th Cir. 1982). The Court must examine "
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